PEOPLE v. GARCIA (2009)

The PEOPLE of the State of New York, Respondent, v. David GARCIA, Defendant-Appellant.

Decided: September 22, 2009

GONZALEZ, P.J., ANDRIAS, CATTERSON, ACOSTA, ABDUS-SALAAM, JJ.

Moskowitz Book & Walsh, LLP, New York (Susan J. Walsh of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Hilary Hassler of counsel), for respondent.

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about August 8, 2008, which, to the extent appealed from, denied an evidentiary hearing on defendant's CPL 440.30(1-a) motion for DNA testing, unanimously affirmed.

The People presented detailed affidavits by the detectives and the prosecutor, based on personal knowledge, setting forth their diligent but unsuccessful efforts to locate certain items recovered in 1995 from the scene of a homicide. This satisfied the People's burden to show that the evidence on which forensic DNA testing was to be performed could no longer be located and was thus no longer available for testing (see People v. Pitts, 4 N.Y.3d 303, 311-312 [2005] ).

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